Citation Nr: 0516152
Decision Date: 06/15/05 Archive Date: 06/27/05
DOCKET NO. 01-07 413 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an increased rating for post-traumatic
stress disorder (PTSD) currently evaluated as 50 percent
disabling.
2. Entitlement to a temporary total rating based on
hospitalization in November 2001.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran served on active duty from May 1972 to February
1974.
This appeal comes before the Department of Veterans Affairs
(VA) Board of Veterans' Appeals (Board) from a June 2000
rating decision of the St. Louis, Missouri Regional Office
(RO) that increased the 30 percent disability rating in
effect for PTSD to 50 percent disabling. The appellant
expressed dissatisfaction with this rating determination in a
notice of disagreement received in May 2001 and has perfected
a timely appeal to the Board.
The appeal also arises from an August 2002 rating decision in
which the RO denied entitlement to a temporary total rating
based on hospitalization in November 2002.
The veteran was afforded a personal hearing in March 2005
before a Member of the Board sitting at St. Louis, Missouri.
The transcript is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The record reflects that the appellant has not had a
psychiatric examination since June 2003. His testimony at
the March 2005 hearing portrayed a more severe disability
than was portrayed on the June 2003 examination. The veteran
is entitled to a new VA examination where there is evidence
that the condition has worsened since the last examination.
Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown,
6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).
The veteran testified that he received weekly outpatient
therapy, as well as individual counseling every six months at
VA's Jefferson Barracks. The record contains VA outpatient
clinic notes dating through September 27, 2004. VA has a
duty to request records of subsequent treatment. 38 U.S.C.A.
§ 5103A(b) (West 2002).
With regard to the temporary total rating claim, the record
reflects that the veteran was hospitalized at a VA facility
from November 5 to November 19, 2001; when he was discharged
to a substance abuse treatment program. He was reportedly
admitted to the SATP program on November 19 and discharged on
December 3, 2001. He was treated for alcohol dependence and
PTSD was noted. In a statement dated in November 2002, a VA
psychologist reported that at the time of his hospitalization
in the "Fall of 2001," the veteran's diagnosis was "PTSD
with active alcohol abuse with acute intoxication."
His temporary total rating claim was denied because his SATP
treatment was not for a service connected disability and
lasted less than 21 days. 38 C.F.R. § 4.29 (2004). The
psychologist's statement seems to link the service connected
PTSD to alcohol abuse. Alcohol abuse can, however, in some
cases be recognized as associated with a service connected
disability.. Allen v. Principi, 237 F.3d 1368 (Fed. Cir.
2001). It is not clear whether the SATP program was the
equivalent of inpatient hospitalization, or whether alcohol
abuse was a manifestation of the service-connected PTSD. If
these questions are answered in the affirmative, it would
appear that the veteran had a period of hospitalization in
excess of 21 days for treatment of a service-connected
disability.
The Board also points out that during the pendency of this
appeal, the Veterans Claims Assistance Act of 2000 (VCAA),
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002 & Supp. 2004) was enacted. The VCAA
requires VA to tell claimants what evidence is needed to
substantiate a claim, what evidence the claimant is
responsible for obtaining, and what evidence VA will
undertake to obtain. VA has also undertaken to advise
claimants of the need to submit relevant evidence in their
possession. 38 C.F.R. § 3.159(b) (2004). VA's duties to
provide this notice are generally not met unless VA can point
to a specific document in the claims folder. Quartuccio v.
Principi, 16 Vet. App. 183 (2002). The Board finds that the
veteran has not yet received adequate notice with respect to
the claim for PTSD. The veteran was sent a June 2003, letter
regarding additional evidence needed by VA, but it did not
tell him what evidence was needed to substantiate the claim.
It is not shown that the appellant has been provided the
specific notice in regard to the claim for temporary total
rating.
Accordingly, this matter is REMANDED for the following
actions:
1. A letter should be sent to the
veteran explaining the evidence needed
to substantiate his claims, and
informing him of which portion of the
information and evidence is to be
provided by him, and what part, if any,
VA will attempt to obtain on his
behalf. He should be advised to submit
relevant evidence in his possession.
He should be told that the evidence
needed to substantiate entitlement to a
70 percent evaluation for PTSD, is that
showing that the disability results in
deficiencies in most of the following
areas: work, school, family
relationships, judgment, thinking, and
mood. The evidence needed to
substantiate entitlement to a 100
percent rating is that showing that
PTSD causes total occupational and
social impairment.
To establish entitlement to a temporary
total rating for hospitalization, the
evidence must show that he was
hospitalized for treatment of service
connected disability for a period in
excess of 21 days.
2. VA clinical records from Jefferson
Barracks dating from October 2004 to
the present should pertaining to
treatment for PTSD, should be requested
and associated with the claims folder.
3. The veteran should be scheduled for a
VA psychiatric examination, to include a
medical opinion concerning the current
severity of his service-connected PTSD.
The claims file and a copy of this remand
must be made available to the physician
designated to examine the veteran, and
the examination report should indicate
whether the claims file was reviewed.
The examiner should express an opinion as
to whether the veteran has deficiencies
in each of the following areas: work,
school, family relations, judgment,
thinking, and mood. The examiner should
also report a GAF score and provide an
opinion as whether the clinical evidence
supports a finding that the veteran is
totally disabled and unable to engage in
any gainful employment on account of
PTSD.
The examiner should also express an
opinion as to whether the veteran's
alcohol abuse is secondary to PTSD or
is evidence of increased disability
from PTSD. The examiner should provide
a rationale for this opinion.
4. Thereafter, readjudicate the issues
of entitlement to an evaluation in
excess of 50 percent for PTSD and
entitlement to a temporary total rating
based on hospitalization in November
2001. If the benefits sought remain
denied, issue a supplemental statement
of the case. The case should then be
returned to the Board if otherwise in
order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).